Cross-border safeguarding of intangible cultural heritage through geographical indications and EU collective marks

Abstract

To safeguard intangible cultural heritage across borders, there is a need to adopt intellectual property rights, which are suitable to protect, from potential misappropriation, communal rights. Intellectual property rights are territorial and thus, need to be registered in each country one would like to protect. However, in cases of transnational disputes on intellectual property rights, the Brussels system applies an exclusive jurisdiction rule, which implies multiple parallel proceedings. This may raise the risk of conflicting judgments, considerable litigation costs, and inequalities between parties, in particular when intellectual property owners are intangible cultural heritage bearers. Yet, distinct from transnational disputes concerning intellectual property rights, those regarding geographical indications do not fall into the exclusive jurisdiction rule of the Brussels system. Unlike Regulation (EU) No 1151/2012 that regulates quality schemes for agricultural products and foodstuffs for geographical indications, Regulation (EU) No 2017/1001, which regulates EU trade marks, does establish a system of cross-border enforcement. Under this Regulation, EU trade marks do not fall within the scope of the Brussels System and consequently the exclusive jurisdiction rule does not apply to them. Thus, the systems regulating EU geographical indications and EU trade marks allow for the consolidation of litigation before a single competent court. This consolidation would be in line with recent international academic proposals, among which is that of the International Law Association Committee on Intellectual Property and Private International Law. Such consolidation of international intellectual property rights litigation provides one solution to the limitations of trade marks and geographical indications for safeguarding intangible cultural heritage in transnational misappropriation cases. Another proposition is the use of intellectual property rights as part of a ‘broad positive strategy’ for safeguarding intangible cultural heritage. This positive strategy encompasses the use of intellectual property rights alongside other legal and marketing safeguarding tools, with the aim of enhancing the reputation of and encouraging respect for the heritage in question. In turn, this may create a virtuous circle, with the enhanced reputation of and respect for the intangible cultural heritage resulting in non-community members and the public being more aware of the intangible cultural heritage, leading to fewer misappropriations and therefore resulting in greater transnational safeguarding for the heritage in question.